A recent outbreak in the South Bronx claimed 12 lives, left another 120 victims infected and put Legionnaires’ Disease back in the headlines. Besides being potentially fatal, LD poses a serious product liability and warranty liability risk to the manufacturer of any product that holds or stores water. This group includes manufactures of HVAC equipment, water heaters, water tanks, plumbing fixtures and supplies and companies that include these items in their products, such as mobile home, motorhome and travel trailer makers. But once appreciated the liability risk can be effectively managed. Here are a few things you should know about the disease and some suggestions for managing the liability risk it poses.
Legionnaires’ Disease (known as legionellosis in medical circles) is a type of bacterial pneumonia. Scientists first identified the disease and its cause – the Legionealle bacterium – in 1976 following an outbreak at the American Legion Convention at a prominent Philadelphia hotel. Research has since shown Legionealle to be ubiquitous. The bacterium occurs naturally in lakes and streams and spreads through water distribution systems. It can survive the chlorine levels found in most public water systems and is present at some level in virtually all municipal water supplies. Legionellae can grow in tap water at temperatures ranging from 77º to 108º F, with optimal growth conditions occurring at 98.6º F.
For LD to develop, an individual must inhale aerosolized water that contains a high enough concentration of the bacteria to make it past the body’s natural defense mechanisms. Most exposures do not produce disease. But when they do, the disease can be fatal. Outbreaks have been linked to HVAC equipment, especially cooling towers and evaporative condensers, water heaters and tanks, water distribution systems, water filtration devices, showers, faucets, humidifiers, whirlpool baths, respiratory equipment, ultrasonic misters and decorative fountains. LD symptoms usually appear within 2 days to 2 weeks after exposure. Most at risk are older adults, smokers and people with weakened immune systems.
LD outbreaks are on the rise, with the number of reported cases having tripled in the past decade. The Centers for Disease Control and Prevention (CDC) estimates that in the U.S., the disease infects between 8,000 and 18,000 people annually with associated healthcare costs of about $321 million. The CDC puts the mortality rate in some outbreaks at near 50%.
But the CDC’s estimates may not tell the whole story. Medical experts believe that because most LD infections involve a single patient, they are frequently misdiagnosed as some other form of pneumonia. As a result, a great many cases go un-investigated and unreported. The actual number of LD cases in the U.S. may be as high as 100,000 annually.
The increasing diagnoses of LD cases has led to an increase in the number of claims and lawsuits alleging wrongful death, serious personal injury, property damage and economic loss, including business interruption and lost profits. For the most part, claims have been brought against building owners and facility managers under a negligence theory. More recently, however, savvy plaintiffs’ attorneys have begun to target manufacturers. These suits typically allege product design, manufacture, instructions and warnings defects and seek recovery under strict product liability and for breach of express and implied warranty. They can be brought directly by the allegedly injured party or a by property owner or product user who has been sued and seeks to pass on liability to the manufacturer.
Effective Risk Management
Effectively managing the risks Legionellae and other forms of potentially harmful bacterium pose requires action on the part of manufacturers and product users alike. The first step is for manufacturers to take steps to heighten customer awareness and understanding of the risk. Next, manufacturers should make available to customers the information necessary for them to take the precautions necessary to minimize their chances of being exposed and infected. Once informed, it is up the product user to use and care for the product properly. Below are several way manufacturers can do their part to reduce the health risks LD bacteria poses to product users and reduce their own liability risk at the same time.
- Give customers the facts about LD. Warn and educate them about the risk in product literature, customer communications and via your website. Let your customers know what LD is and where it comes from. Alert them that Legionellae and other forms of potentially harmful bacterium are present in virtually every water supply and that exposure risk is ever-present. Outline the conditions under which the bacterium grow and multiply. For example, customers should know that while most hot water tanks can be set to maintain a temperature high enough to kill the bacteria, that is, at or above 130°F, because of scalding risks most building codes require that water temperature be 120°F or less when it leaves a spigot or shower heads. And when a tank is set at 120°F, the water temperature at the spigot or shower head often falls in 95°F to 105°F range, which is conducive to LD bacteria growth.
- Inform customers about the steps they can take to reduce the risk of harmful exposure and instruct customers on how to properly use and care for the product. This should be done in owner’s manuals and user guides and reinforced on your website and in customer communications. For example, instruct end users on the need to measure spigot and shower head temperatures and to check, and if need be, adjust the tank temperature setting. Also tell them about the need to regularly clean and disinfect tanks and water delivery systems and how to do so effectively.
- Encourage retailers, trade organizations, owner’s clubs and similar groups in your industry to include information and warnings about exposure risks and provide proper use, care, cleaning and maintenance instructions and services.
- Educate the independent service centers and service technicians you do business with about the risk and how to minimize it. And encourage them to document and when possible to correct a problem when they see it.
Educating customers about the risk and how to avoid it is a simple and effective way for a manufacturer to minimized LD liability risk.
Co-authors: Thomas P. Bernier, Susan E. Smith & Paul E. Wojcicki and all Segal McCambridge Singer & Mahoney, Ltd. Shareholders. Tom and Susan reside in the firm’s Baltimore office and are leading defense lawyers for Legionnaires’ Disease claims. Paul resides in the firm’s Chicago office and is a well-regarded warranty and product liability defense attorney.